ARTICLE 19 condemns in the strongest terms Decree-Law No. 11-2022, which dissolves the Superior Council of the Judiciary and replaces it with a temporary judicial authority. Presidential Decree No. 11-2022 seriously undermines the independence of the Tunisian judiciary, dismantles the separation of powers and poses a serious threat to human rights. We call on President Saied to repeal Decree-Law No. 11.
On 12 February 2022, the President of the Republic of Tunisia promulgated Decree-Law No. 11-2022, establishing a Provisional Superior Council of the Judiciary to replace the Superior Council of the Judiciary. Decree-Law No. 11 is one of several measures adopted since a state of emergency pursuant to article 80 of the Tunisian Constitution was declared on 25 July 2021 (see here for a review of the key challenges to freedom of expression and information since the state of emergency was declared).
ARTICLE 19 recalls its recommendation to abolish the state of emergency in Tunisia and reminds the Tunisian Government that under the International Covenant on Civil and Political Rights (ICCPR), a state of emergency may only be proclaimed if an exceptional danger threatens the life of the nation. In addition, measures derogating from the provisions of the ICCPR must be of an exceptional and temporary nature. The Human Rights Committee has also held that proclaiming a state of emergency does not give States a carte blanche to violate their human rights obligation but any measures must be limited to the extent strictly required by the exigencies of the situation (see Human Rights Committee, General Comment No. 29, paragraphs 2 and 5).
ARTICLE 19 further reminds the Tunisian Government that a competent, independent and impartial judiciary plays a fundamental role in protecting human rights and that the creation of a Superior Council of the Judiciary (provided for by Organic Law No. 2016-34 of 28 April 2016) is one of the most important achievements of the Tunisian Constitution of 2014, as it guarantees the independence of the judiciary through supervision by an independent body that is composed largely of judges elected by their peers.
Finally, we recall that Tunisia has committed to guarantee the right to trial by a competent, independent, and impartial court in accordance with international and regional instruments (in particular Article 14 of the ICCPR and Article 7 of the African Charter on Human and Peoples’ Rights) and that the UN Basic Principles on the Independence of the Judiciary, as endorsed by the UN General Assembly, provide that it ‘is the duty of all governmental and other institutions to respect and observe the independence of the judiciary’ (Principle 1).
ARTICLE 19 is concerned that Decree-Law No. 11 fails to comply with the Republic of Tunisia’s international commitments as outlined above. Decree-Law No. 11 tasks the Provisional Superior Council of the Judiciary to propose ‘necessary reforms to ensure the proper functioning of the judiciary’. It further confers considerable powers on the Executive to influence appointments, removals and the general functioning of the Provisional Superior Council, thereby undermining the latter’s independence. In particular:
- Decree-Law No. 11 confers on the President of the Republic the power to directly appoint 9 out of the 21 members of the Provisional Superior Council. In particular, the President of the Republic appoints three retired judicial judges (Article 3); three retired administrative judges (Article 4); and three retired judges of the financial judiciary (Article 5). Articles 15 and 19 further allow the President of the Republic to object to the appointment, nomination, promotion or transfer of judges and to request a review of judicial appointments.
These provisions are incompatible with Article 106 of the Tunisian Constitution, which provides that ‘Judges shall be nominated by presidential decree based on a concurrent proposal by the Supreme Judicial Council’. Furthermore, the Special Rapporteur on the independence of judges and lawyers has recommended that an appointment body act independently of both the executive and legislative branches of government in order to avoid the politicisation of the appointment process (see the 2012 Report of the Special Rapporteur, focusing on judicial corruption, paragraph 46).
- Pursuant to Articles 19 and 20 of Decree-Law No.11, the President is to sign off on judicial movements and has the right to request the dismissal of any judge who violates their ‘professional obligations’ on the basis of a reasoned report from the Head of Government or the Minister of Justice.
Such powers contradict the UN Basic Principles on the Independence of the Judiciary, which stipulate that ‘judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties’. In addition, the Special Rapporteur on the independence of judges and lawyers recommends that the power to discipline judges should be vested in an independent body and that executive control over impeachment proceedings should be avoided (see the 2020 Report of the Special Rapporteur, focusing on the disciplinary proceedings against judges, paragraphs 23 and 91).
- Finally, Article 9 of Decree-Law No. 11 prohibits judges to engage in any organised collective action, including strikes, that may ‘disrupt the normal functioning of the courts’.
This Article is incompatible with Article 35 (freedom of association); Article 36 (right to strike); and Article 37 (right to assembly and peaceful demonstration) of the Tunisian Constitution and articles 21 and 22 of the ICCPR. We do not consider that the prohibition of collective action for judges can be justified as required by the exigencies of the state of emergency in Tunisia and neither does the prohibition comply with the general requirements under which these human rights may be restricted. In particular, we believe that there is no public interest that would justify a prohibition of collective action and that it is neither necessary nor proportionate.
ARTICLE 19 is deeply concerned about the implications that Decree-Law No. 11 will have on the rule of law, the right of individuals to a fair trial, and freedom of expression in Tunisia.
We therefore urge President Saied to repeal Decree-Law No. 11, restore the Superior Council of the Judiciary and refrain from any other act that would threaten the independence of the Judiciary.